Forum for EU/US Legal-Economic Affairs

The Forum for EU/US Legal-Economic Affairs was established in 1989 by The Mentor Group, an American organisation established in 1983 “to conduct legal and economic studies and research for scholars and officials of the United States of America and Europe”.[1]

The Forum describes itself as “a peer group of EU and US Supreme Court Justices, European Union Commissioners and their US counterparts, and corporate Chief Legal Officers” which meets bi-annually to discuss “concrete legal-economic developments between the European Union and the United States”.[2]

In practice, as outlined below, internal British American Tobacco (BAT) documents show that the Forum has served as a platform for large corporations to access senior European Union (EU) decision makers, and attempt to influence EU legislation and regulations that have the potential to harm their business interests.[3][4]

The Forum has claimed to have access to the European Commission at the highest level,[5] and Forum events have attracted high profile speakers and participants:

In April 2017, Giovanni Buttarelli, the European Data Protection Supervisor spoke at a Forum event.[6]

In September 2016, speakers included EU Commissioner of Competition Margrethe Vestager, and the President and a judge from the European Court of Justice (ECJ). Participants included French ministers and judges, two Directors of the European Commission’s Legal Service, the US Ambassador to the EU, the US Federal Trade Commissioner, and large corporations, including BAT.[7]

In September 2015, Commissioner Margrethe Vestager spoke at the Forum event.[8]

In April 2015, Maroš Šefčovič, European Commission Vice President of Energy Union, was a speaker at a Forum event.[9]

In September 2011, Lorenzo Bini Smaghi, Member of the Executive Board of the European Central Bank, was a speaker.[10]

Relationship with the Tobacco Industry

BAT has been a Forum member since 1992, when it became “one of only two British corporate [Forum] members” following an introduction from Unilever.[11][12][13][14]

BAT paid a joining fee of US$15,000 and the 1992 membership fee of US$30,000.[15]

“a truly unique opportunity for corporations such as ourselves to have an influence, through informing them of our experiences, concerns and viewpoints, on the thinking of the justices who will be making decisions of key economic importance to us”.[11]

BAT played a key role in recruiting other British multinational corporations to join the Forum.[16][17] In October 1994, Chalfen wrote to several corporations (including food wholesaler Booker, Rolls-Royce, Associated British Foods, Hanson, Marks & Spencer, and United Biscuit) urging them to join the Forum, claiming that “the Forum is now proving itself an objective, influential resource for high policy makings in the European Community”.[18]

Promoting Risk Assessment in the EU in the 1990s

In the 1990s, BAT used the Forum to promote its risk assessment agenda, which aimed to get policy makers to prioritise policy risks to business over other policy objectives, to senior European Commission officials and ECJ judges. It also aimed to discredit health protection regulation. Although corporate members did not set the agenda for Forum meetings (at least in the 1990s), they were asked to provide input into draft agendas, in particular provide “nuts-and-bolts issues/comments….which will inform the jurist and scholars members”.[19]

In 1993, US Supreme Court Judge Stephen Breyer initiated Forum dialogue on risk assessment reform, which continued in July 1994 with a roundtable discussion on ‘Risk assessment at the EC Level Interacting with Risk Regulation at the National Level: Exercising the Principle of Subsidiarity through Business Affairs’.[20]

As part of the proposal, BAT suggested that a risk assessment authority at EU Level might help restrain “improperly based regulation or legislation”, and ensure the protection of (corporate) freedom of speech, and the principles of subsidiarity and proportionality. BAT further proposed “It is to be hoped and anticipated that the ECJ will be willing to exercise its review powers described above in assessing the proper basis of proposed regulations and legislation, whether or not a risk regulation authority is created”.

Following the meeting, Thomas Kosmo, President of the Mentor Group, wrote to Chalfen thanking him for his input which “were right on the mark” and that “the ‘quality of regulation” will now become a theme in the further dialogue on risk assessment”.[25]

BAT funded Peter Duffy to prepare a further paper, ahead of the September 1995 Forum session in London, titled “the Protection of Commercial Free Speech under European Community Law”.[3] The paper, which was presented by Duffy himself, explored the protection of commercial free speech when restrictive regulatory action is proposed at EU level without access to a risk assessment body. The proposed Tobacco Advertising Directive was used as an example of supposed inappropriate and unlawful legislation. According to Duffy, it “would have been seriously insufficient simply to rely upon health risks associated with tobacco consumption to justify the freedom of expression restrictions that were contained in the proposed EC tobacco Directive”. Furthermore, Duffy said “The legal message for the competent EC institutions is that objective and specific justification are needed and that sweeping restrictions should not be adopted in the absence of a specific and sufficiently compelling case being made out”.[26][27]

BAT’s role in driving the Forum’s risk assessment agenda, is in line with evidence that BAT intended to use risk assessment as part of its broader, successful efforts to covertly shape the EU policy making architecture to make it harder to pass public health policies.[28] The regulatory reforms it successfully lobbied for (later known as Better or Smart Regulation) would help achieve this by furthering business interests while side-lining social and environmental interests and concerns.[29][30]

From 1996 onwards, BAT appears to have shifted its lobbying efforts on risk assessment & Better Regulation to the Brussels-based think tank European Policy Centre.

For more information on how BAT and other corporations shaped Better Regulation principles to favour business outcomes, go to our page on EU Better Regulation.